Alabama appeals court reverses murder conviction of Ala. officer who shot, killed suicidal subject
The court ruled that self-defense jury instruction that treated the officer like an ordinary citizen was erroneous
On April 3, 2018, Jeffrey Parker called 911 from his Huntsville, Alabama residence and threatened to blow his head off. Huntsville Police Department (HPD) officers Pegues and Beckles were dispatched to the call. Upon arrival, Pegues drew her pistol and made a partial entry through the front door, thereby exposing half her body to the inside. She observed Parker sitting on a couch with what appeared to be a gun at his own head. She told Beckles, still outside, what she saw. Beckles informed police dispatch that Pegues had seen Parker with a gun to his head. 
Officer Darby heard Beckles’ radio call about “a guy with a gun … threatening suicide” and responded. Darby arrived and saw that Pegues had her gun drawn but pointed down. He commanded her to point her gun at Parker because he thought that Parker “could kill her.” Pegues moved completely into the residence and briefly raised her gun but almost immediately lowered it. Both Beckles and Darby followed her inside and demanded that Parker drop the weapon.
Pegues also pleaded with Parker to drop the weapon, but he kept it pointed at his head and refused to drop it. Darby, believing that all three officers were in danger of being shot, fired at Parker and killed him.
The Darby murder trial
Darby was charged with murder. After a jury trial, he was found guilty and sentenced to 25 years in prison.
Officer Pegues testified at Darby’s trial that prior to Darby’s arrival, she attempted to de-escalate the situation, but that once Darby entered the residence, she “could feel the tension just rising.” She testified that Parker didn’t threaten her or “do anything to make her believe he wanted to do anything other than commit suicide.”
Officer Beckles testified that “at no time during this event did he feel the need to take deadly force action.” He stated that Parker “didn’t make any overt action to” indicate that he was about to point his weapon at the officers. He estimated that Parker was ordered to drop the weapon about seven times but failed to comply.
An HPD detective investigated the shooting incident and testified that he found no evidence that Parker “ever made a hostile determination towards anybody other than himself.”
Officer Darby testified that upon entering the residence he realized that all three officers had no cover between them and Parker. He ordered Parker to drop the gun twice, but Parker refused. Darby shot and killed him. “Darby also presented testimony from three other law enforcement officers (expert witnesses) who each testified that Parker's refusal to put his weapon down constituted an imminent threat to the responding officers' lives.” 
After both sides presented their evidence, Darby requested the trial judge to charge the jury as follows: "The reasonableness of an officer's actions in using deadly force must be objectively reasonable judged from the perspective of a reasonable officer on the scene, the fact that officers are forced to make split-second decisions, and in light of the facts and circumstances confronting them at the time.”
In support of his requested jury instruction, Darby cited the United States Supreme Court opinion in Graham v. Connor.  The trial judge rejected Darby’s requested instruction. Instead, the judge provided the jury with a general self-defense instruction that is available to all citizens who assert self-defense as a justification for their actions. This permitted the jury to examine Darby’s conduct from the perspective of an ordinary citizen rather than a trained law enforcement officer.
Darby appealed and argued that the trial judge delivered an erroneous self-defense instruction that permitted the jury to ignore, as irrelevant, the expert testimony from several witnesses that reasonable law enforcement officers would believe they were facing an imminent threat to their personal safety.
The decision of the Alabama Court of Criminal Appeals 
The Alabama Court of Appeals reversed Darby’s conviction and ordered that he receive a new trial. The court ruled that it was not bound to accept Darby’s offered instruction that was based upon the Supreme Court’s opinion in Graham v. Connor. The court explained that Graham does not govern a state court’s application of state criminal statutes because it “involved a civil action brought under 42 U.S.C. § 1983.” (The federal civil rights statute).  Nonetheless, the court observed that the Alabama legislature passed a self-defense statute designed for Alabama peace officers that states: "A peace officer is justified in using deadly physical force upon another person when and to the extent he reasonably believes it necessary in order … [t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." 
The court ruled that the trial judge erred by giving the jury a self-defense instruction designed for ordinary citizens instead of an instruction intended by the Alabama legislature to be used for peace officers in self-defense situations. The court explained, “[T]he Alabama Legislature has made clear that there is a unique standard to be used in judging a police officer's use of deadly force in self-defense or defense of another while acting in his capacity as a police officer. Thus, the proper perspective from which to evaluate a police officer's use of deadly force in such situations is indeed that of a reasonable police officer in the same situation.”
The court observed that the ordinary citizen self-defense instruction given to the jury permitted the jury to ignore “extensive testimony from multiple witnesses regarding the training a police officer receives with respect to confrontations with an armed person.” The court noted that this testimony “supported a finding that a reasonable police officer in Darby's situation could have concluded that Parker's conduct represented the imminent use of deadly force. In other words, that testimony supported a finding that Darby acted in self-defense or defense of another when he shot Parker.”
Here’s a summary of the lessons law enforcement officers can take from this case:
- Parker called the police himself and threatened suicide. There was no indication that there were other civilians in immediate danger. Once the first officer saw Parker with a gun to his head, her tactical response should have been to back out, take cover, call for help, set up a perimeter, request a mental health professional, and attempt to de-escalate and negotiate a peaceful surrender.
- The tactical decision(s) by all three officers to completely enter the room and expose themselves to a person holding a gun was extremely dangerous and unnecessary. This involved an unforced error that dramatically escalated an already dangerous encounter.
- Once the officers placed themselves in this precarious predicament, a strong argument can be made that the officers were faced with a significant threat to their personal safety.
- An action/reaction study conducted by Dr. J. Pete Blair, a professor of criminal justice at Texas State University, involved students holding training guns loaded with marking cartridges to their heads while being confronted by officers 10 feet away with training pistols pointed at the students. Each confrontation involved one student and one officer. The confrontation was repeated several times with different students and officers participating each time. Once the officers ordered the students to drop the guns, the students would attempt to shoot the officers as quickly as they could. The average time for the students to fire was .40 of a second. The average officer response time to fire was .40 of a second. The study demonstrates how fast a situation can turn from encountering a potential suicide subject to becoming the victim of a cop killer.
- This case demonstrates the sobering reality that in prosecutions of police officers for murder/manslaughter etc., state court judges can, as the court did in the instant matter, reject an officer’s legal defense grounded in the “objective reasonableness” use of force standard set forth by the U.S. Supreme Court opinion in Graham v. Connor. 
- As discussed, the murder conviction reversal was based not upon Graham but rather upon an Alabama statute that treated peace officers differently than ordinary citizens who claimed self-defense for their actions. The court ruled, “[W]here there is evidence to support a defendant police officer's claim that he used deadly force in self-defense or defense of another while acting in his capacity as a police officer, the trial court should instruct the jury to evaluate the defendant's actions from the perspective of a reasonable police officer in the same situation.”
- Police officials and police attorneys should ensure that officers under their command or counsel are made aware of the state deadly force standard that they would be judged by if charged with murder or manslaughter. Further, if the current state deadly force standard for officers criminally charged, is not favorable to law enforcement, strong consideration should be given to attempting to influence the state legislature to change the law to reflect more favorably upon law enforcement officers.
- In 2019, the California legislature passed a new unfavorable deadly force statute for police officers that changed the deadly force standard for police officers from “reasonable” (Supreme Court’s Garner/Graham standard) to “necessary.”  Commenting on the new law, a recent University of Toledo Law Review article observed, ”the proposed law was tempered to allay concerns raised by police associations … the bill was watered down in an attempt to ensure its passage.”  The proposed law was amended by the California legislature to make it more acceptable for law enforcement due to pressure from police advocacy groups. The result, although unfavorable to police, could have been much worse.
- The California law doesn’t define “necessary” but does state that deadly force may be used to “defend against an imminent threat of death or serious bodily injury.”  The law also contains language that suggests that imminent means immediate.  The California statute also permits examination of an officer’s pre-shooting conduct (which the Supreme Court suggests is not relevant in Graham v. Connor). 
- The effect of the new California statute on prosecutions of police officers for murder/manslaughter is yet to be seen. Suffice it to say that California’s move away from the Supreme Court’s “reasonableness” standard to an undefined statutory “necessary” standard to govern police use of deadly force is likely to result in more criminal prosecutions and convictions of police officers in that state.
1. It would later be determined that Parker was holding ‘a flare gun that had been intentionally painted black,’ but there is no evidence indicating that any of the officers were aware of that fact.
2. Quote is taken from the Alabama Court of Criminal Appeals opinion.
3. 490 U.S. 386 (1989}. In Graham, the Supreme Court created an objective reasonableness standard for police use of deadly force grounded in the Fourth Amendment. The Supreme Court ruled that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Further, the Court ruled that when police use of force situations are evaluated, the fact that officers are “forced to make split-second judgments” must be considered.
4. Darby v Alabama, (CR-20-0919) (3/24/23).
5. The Alabama Court of Criminal Appeals determined when reviewing state criminal statutes, it is not bound to follow a constitutionally grounded Fourth Amendment-based opinion of the United States Supreme Court regarding the standard for police use of deadly force. The Alabama court cited a quote from a California case, People v. Perry, 36 Cal. App. 5th 444, 465, 248 Cal. Rptr. 3d 522, 536 n.10 (2019) as authority for declining to follow Graham v. Connor regarding its application to a state’s criminal statutes. The California court ruled, “Perry contends throughout his briefing that we are bound to apply the standards articulated in Graham in this case. Graham was a civil rights action brought pursuant to section 1983 of title 42 of the United States Code and it involved an alleged violation of the Fourth Amendment. Long-standing and deeply held principles of federalism counsel that we have no obligation to import those standards into our state law defining criminal offenses."
See also, People v. Couch, 461 N.W.2d 683, 684 (1990) in which the Michigan Supreme Court rejected the prosecution’s argument that the U.S. Supreme Court’s opinion in Tennessee v. Garner, 471 U.S. 1 (1985), requires it to change the Michigan fleeing felon rule to comply with the Supreme Court’s ruling in Garner, (i.e. Deadly force cannot be used against unarmed and non-dangerous fleeing felons). The Michigan Supreme Court explained that “Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court.”
The Alabama court did not offer any United States Supreme Court opinion or federal appellate opinion as authority for its decision on this issue. It is unknown whether the federal courts would agree with the Alabama, California and Michigan courts that have considered this issue.
6. § 13A-3-27(b)(2), Ala. Code 1975.
7. 490 U.S. 386, 397 (1989). See also, recent university law review articles that take the position that state courts are not bound to follow the Supreme Court opinions in Graham and Garner when confronting use of deadly force issues involving state criminal charges directed at police officers. For example, see, Flanders, Chad and Welling, Joseph (2015) “Police Use of Deadly Force, State Statutes 30 Years after Garner,” Saint Louis University Public Law Review, Vol. 35: No.1, Article 7. And Shah, Raoul, (2018) “Licensed to Kill? An Analysis of the Standard for Assessing Law Enforcement’s Criminal Liability for Use of Deadly Force,” Mitchell Hamline Law Journal of Public Policy and Practice, Vol. 39/ Issue 1.
8. The new bill, commonly referred to as AB-392 is found at Calif. Pen. Code § 835a (c)(1), (A)-(B).
9. See Kathleen Y. Murray, “Exploring A ‘Necessary Standard’ For the Use of Excessive Deadly Force by Law Enforcement: A Flawed Solution With Positive Potential,” University of Toledo Law Review, Vol. 52, p. 397 (Spring 2021).
10. Calif. Pen. Code § 835a (c)(1), (A). Deadly force must be “necessary” “To defend against an imminent threat of death or serious bodily injury.”
11. Calif. Pen. Code § 835a (e)(2). “Based on the totality of the circumstances, a reasonable officer … would believe that a person has the present ability … to immediately cause death or serious bodily injury.”
12. See, Calif. Pen. Code § 835a (e)(3).